Garrett Ordower
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226529387
- eISBN:
- 9780226529554
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226529554.003.0015
- Subject:
- Law, Human Rights and Immigration
This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but ...
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This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but little ability to hold them accountable. Exemplifying this is the difficulty that the U.S. faced in prosecuting Blackwater employees for their massacre of Iraqi civilians in Nisour Square in the course of providing security services for the U.S. State Department. Due to the lack of extraterritorial jurisdiction over the activities of many such contractors, the laws that apply to military personnel, such as the UCMJ and the MEJA, do not provide grounds for criminal or civil actions against contractors in many actual and possible circumstances. This chapter reviews the possibilities for using MEJA, SMTJ, ATS, UCMJ, the Anti-torture Statute, and foreign law against rogue or criminal contractors, and finds holes in the scope of each for securing justice. The chapter goes on to consider some recent proposals, such as the Civil Extraterritorial Jurisdiction Statute (CEJA) and extensions to existing law, to plug the gaps that make it difficult to prosecute or sue contractors for acts such as torture.Less
This chapter argues that the vast increase in the U.S. use of military contractors to fight the War on Terror has created the potential for illegality and abuse by U.S. military contractors but little ability to hold them accountable. Exemplifying this is the difficulty that the U.S. faced in prosecuting Blackwater employees for their massacre of Iraqi civilians in Nisour Square in the course of providing security services for the U.S. State Department. Due to the lack of extraterritorial jurisdiction over the activities of many such contractors, the laws that apply to military personnel, such as the UCMJ and the MEJA, do not provide grounds for criminal or civil actions against contractors in many actual and possible circumstances. This chapter reviews the possibilities for using MEJA, SMTJ, ATS, UCMJ, the Anti-torture Statute, and foreign law against rogue or criminal contractors, and finds holes in the scope of each for securing justice. The chapter goes on to consider some recent proposals, such as the Civil Extraterritorial Jurisdiction Statute (CEJA) and extensions to existing law, to plug the gaps that make it difficult to prosecute or sue contractors for acts such as torture.
Francesco Francioni
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199604555
- eISBN:
- 9780191725180
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604555.003.0006
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter argues that international human rights law offers a rational basis for the construction of a general due diligence obligation of home states of private military and security companies ...
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This chapter argues that international human rights law offers a rational basis for the construction of a general due diligence obligation of home states of private military and security companies (PMSCs) to prevent, minimise, and remedy human rights violations by these companies, including violations connected to the export of their services. This conclusion is reached based on legal analysis of the content and structure of relevant human rights obligations, is supported by an evolutive interpretation of the rules of attribution of wrongful acts under the law of state responsibility, and is consistent with a policy perspective in which PMSCs' transnational operations are increasingly dependant on public procurement ties that these companies maintain with the states where they are based.Less
This chapter argues that international human rights law offers a rational basis for the construction of a general due diligence obligation of home states of private military and security companies (PMSCs) to prevent, minimise, and remedy human rights violations by these companies, including violations connected to the export of their services. This conclusion is reached based on legal analysis of the content and structure of relevant human rights obligations, is supported by an evolutive interpretation of the rules of attribution of wrongful acts under the law of state responsibility, and is consistent with a policy perspective in which PMSCs' transnational operations are increasingly dependant on public procurement ties that these companies maintain with the states where they are based.
Amy E. Eckert
- Published in print:
- 2015
- Published Online:
- August 2016
- ISBN:
- 9780801454202
- eISBN:
- 9781501703577
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9780801454202.003.0001
- Subject:
- Political Science, Security Studies
Many of the military functions that were once performed exclusively by national militaries are now performed by private military contractors (PMCs) hired by the state. These PMCs, whether or not they ...
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Many of the military functions that were once performed exclusively by national militaries are now performed by private military contractors (PMCs) hired by the state. These PMCs, whether or not they are engaged in the use of force, contribute to the war effort in ways that the contemporary statist formulation of the just war tradition cannot address. This chapter sets out the book's central argument, that the just war tradition is not inherently tied to the state. While just war principles in their present form rest on statist assumptions, these principles can be adapted to provide moral guidance on privatized wars. The chapter also discusses the growth of the PMC industry; the origins of the current market for force; and PMC involvement in Sierra Leone and Afghanistan, and in providing training and logistical support. This is followed by an overview of the subsequent chapters.Less
Many of the military functions that were once performed exclusively by national militaries are now performed by private military contractors (PMCs) hired by the state. These PMCs, whether or not they are engaged in the use of force, contribute to the war effort in ways that the contemporary statist formulation of the just war tradition cannot address. This chapter sets out the book's central argument, that the just war tradition is not inherently tied to the state. While just war principles in their present form rest on statist assumptions, these principles can be adapted to provide moral guidance on privatized wars. The chapter also discusses the growth of the PMC industry; the origins of the current market for force; and PMC involvement in Sierra Leone and Afghanistan, and in providing training and logistical support. This is followed by an overview of the subsequent chapters.
Amy E. Eckert
- Published in print:
- 2015
- Published Online:
- August 2016
- ISBN:
- 9780801454202
- eISBN:
- 9781501703577
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9780801454202.003.0004
- Subject:
- Political Science, Security Studies
This chapter begins by considering the relationship between jus ad bellum and jus in bello rules, which regulate different aspects of war, as well as the relationship between international law and ...
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This chapter begins by considering the relationship between jus ad bellum and jus in bello rules, which regulate different aspects of war, as well as the relationship between international law and the just war tradition, as two sets of rules that apply to the regulation of armed conflict. It then looks at one of two key challenges that privatization poses to jus in bello rules. The challenge stems from the fact that jus in bello rules, though intended to regulate the conduct of individuals during war time, incorporate some statist assumptions. These rules exist primarily for the purpose of protecting populations that are particularly vulnerable to the horrors of war. While constraining the conduct of private military contractor (PMC) personnel presents the more pressing moral problem, these individuals are sometimes in need of protection themselves. As such, their ambiguous status as something between civilian noncombatants and military members poses a unique set of problems. Finally, the chapter turns to the question of who bears responsibility for the violations of jus in bello norms, suggesting a system of shared responsibility for PMC personnel who violate jus in bello norms, the PMCs that employ them and, in some cases, the states that hire the PMCs.Less
This chapter begins by considering the relationship between jus ad bellum and jus in bello rules, which regulate different aspects of war, as well as the relationship between international law and the just war tradition, as two sets of rules that apply to the regulation of armed conflict. It then looks at one of two key challenges that privatization poses to jus in bello rules. The challenge stems from the fact that jus in bello rules, though intended to regulate the conduct of individuals during war time, incorporate some statist assumptions. These rules exist primarily for the purpose of protecting populations that are particularly vulnerable to the horrors of war. While constraining the conduct of private military contractor (PMC) personnel presents the more pressing moral problem, these individuals are sometimes in need of protection themselves. As such, their ambiguous status as something between civilian noncombatants and military members poses a unique set of problems. Finally, the chapter turns to the question of who bears responsibility for the violations of jus in bello norms, suggesting a system of shared responsibility for PMC personnel who violate jus in bello norms, the PMCs that employ them and, in some cases, the states that hire the PMCs.
Amy E. Eckert
- Published in print:
- 2015
- Published Online:
- August 2016
- ISBN:
- 9780801454202
- eISBN:
- 9781501703577
- Item type:
- book
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9780801454202.001.0001
- Subject:
- Political Science, Security Studies
Recent decades have seen an increasing reliance on private military contractors (PMCs) to provide logistical services, training, maintenance, and combat troops. This book examines the ethical ...
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Recent decades have seen an increasing reliance on private military contractors (PMCs) to provide logistical services, training, maintenance, and combat troops. This book examines the ethical implications involved in the widespread use of PMCs, and in particular questions whether they can fit within customary ways of understanding the ethical prosecution of warfare. The book's concern is with the ius in bello (right conduct in war) strand of just war theory. Just war theorizing is generally built on the assumption that states, and states alone, wield a monopoly on the legitimate use of force. Who holds responsibility for the actions of PMCs? What ethical standards might they be required to observe? How might deviations from such standards be punished? The privatization of warfare poses significant challenges because of its reliance on a statist view of the world. The book argues that the tradition of just war theory—which predates the international system of states—can evolve to apply to this changing world order. With an eye toward the practical problems of military command, the book delves into particular cases where PMCs have played an active role in armed conflict and derives from those cases the modifications necessary to apply just principles to new agents in the landscape of war.Less
Recent decades have seen an increasing reliance on private military contractors (PMCs) to provide logistical services, training, maintenance, and combat troops. This book examines the ethical implications involved in the widespread use of PMCs, and in particular questions whether they can fit within customary ways of understanding the ethical prosecution of warfare. The book's concern is with the ius in bello (right conduct in war) strand of just war theory. Just war theorizing is generally built on the assumption that states, and states alone, wield a monopoly on the legitimate use of force. Who holds responsibility for the actions of PMCs? What ethical standards might they be required to observe? How might deviations from such standards be punished? The privatization of warfare poses significant challenges because of its reliance on a statist view of the world. The book argues that the tradition of just war theory—which predates the international system of states—can evolve to apply to this changing world order. With an eye toward the practical problems of military command, the book delves into particular cases where PMCs have played an active role in armed conflict and derives from those cases the modifications necessary to apply just principles to new agents in the landscape of war.
Amy E. Eckert
- Published in print:
- 2015
- Published Online:
- August 2016
- ISBN:
- 9780801454202
- eISBN:
- 9781501703577
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9780801454202.003.0003
- Subject:
- Political Science, Security Studies
This chapter considers how private military corporations might skew the application of jus ad bellum principles, particularly with respect to proportionality and reasonable chance of success. It uses ...
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This chapter considers how private military corporations might skew the application of jus ad bellum principles, particularly with respect to proportionality and reasonable chance of success. It uses the cases of Iraq and Afghanistan to explore the ways in which the privatization of force can affect the application of jus ad bellum principles. Jus ad bellum principles generally require that a state commencing a war has a reasonable belief that it will be successful. The prospects of success may likewise be more difficult to assess if a state has not only its own forces at its disposal but also the ability to hire private military contractors (PMCs). Our understanding of the state's role must incorporate an acknowledgment of the growing role of PMCs. For purposes of evaluating a state's compliance with jus ad bellum rules, the activities of PMCs acting on behalf of the state should be considered as part of the state's own actions.Less
This chapter considers how private military corporations might skew the application of jus ad bellum principles, particularly with respect to proportionality and reasonable chance of success. It uses the cases of Iraq and Afghanistan to explore the ways in which the privatization of force can affect the application of jus ad bellum principles. Jus ad bellum principles generally require that a state commencing a war has a reasonable belief that it will be successful. The prospects of success may likewise be more difficult to assess if a state has not only its own forces at its disposal but also the ability to hire private military contractors (PMCs). Our understanding of the state's role must incorporate an acknowledgment of the growing role of PMCs. For purposes of evaluating a state's compliance with jus ad bellum rules, the activities of PMCs acting on behalf of the state should be considered as part of the state's own actions.
- Published in print:
- 2008
- Published Online:
- March 2013
- ISBN:
- 9780226071633
- eISBN:
- 9780226071657
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226071657.003.0003
- Subject:
- History, Military History
Military contractors, or condottieri, and their men were not welcome anywhere. No one in Europe enjoyed the presence of these mercenary forces, and all were desperate to make them go away, fast and ...
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Military contractors, or condottieri, and their men were not welcome anywhere. No one in Europe enjoyed the presence of these mercenary forces, and all were desperate to make them go away, fast and by whatever means. This chapter begins with an overview of some of the types of problems one may expect with regard to the labor contracts signed by the city-states and their mercenaries during the Renaissance (1300–1600). It then discusses issues of supply, demand, and recruitment; contracts and pay; contract enforcement issues; and the development of permanent armies in partial response to the difficulties the military labor contracts posed. Finally, the chapter examines ways in which the principles of economics (opportunity cost, expected marginal costs and benefits, diminishing marginal returns, asymmetric information, hidden action) might apply to the condottieri period.Less
Military contractors, or condottieri, and their men were not welcome anywhere. No one in Europe enjoyed the presence of these mercenary forces, and all were desperate to make them go away, fast and by whatever means. This chapter begins with an overview of some of the types of problems one may expect with regard to the labor contracts signed by the city-states and their mercenaries during the Renaissance (1300–1600). It then discusses issues of supply, demand, and recruitment; contracts and pay; contract enforcement issues; and the development of permanent armies in partial response to the difficulties the military labor contracts posed. Finally, the chapter examines ways in which the principles of economics (opportunity cost, expected marginal costs and benefits, diminishing marginal returns, asymmetric information, hidden action) might apply to the condottieri period.
Amy E. Eckert
- Published in print:
- 2015
- Published Online:
- August 2016
- ISBN:
- 9780801454202
- eISBN:
- 9781501703577
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9780801454202.003.0005
- Subject:
- Political Science, Security Studies
This chapter presents answers to questions about how to apply the principles of just war theory to contemporary conflicts in which private military contractors (PMCs) figure significantly. It begins ...
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This chapter presents answers to questions about how to apply the principles of just war theory to contemporary conflicts in which private military contractors (PMCs) figure significantly. It begins by discussing the public/private divide, a concept that itself crosses several theoretical divides. The divide between public and private spheres is one with political, economic, and social implications. Moreover, the relative significance of each of these spheres has changed over time, particularly with the emergence of the liberal tradition and the market. Despite these differences, there is a clear core of privacy that shields certain issues and actors from public view. This overlap means that each of these traditions points to the existence of a private sphere in which the concept of privacy minimizes public scrutiny. When applied to the international system, the public/private divide mirrors the division between state and nonstate actors. Just as in the other theoretical formulations of the public/private divide, events within the private sphere of the international system are obscured relative to those in the private sphere. This international public/private divide generates many of the problems discussed in previous chapters by shielding the activities of PMCs from public scrutiny. To the extent that these PMCs are involved in an activity that has been defined as a public enterprise, their position on the private side of the public/private divide poses real difficulties. The chapter concludes by considering strategies for bridging the public/private divide for the purposes of applying just war norms to privatized war.Less
This chapter presents answers to questions about how to apply the principles of just war theory to contemporary conflicts in which private military contractors (PMCs) figure significantly. It begins by discussing the public/private divide, a concept that itself crosses several theoretical divides. The divide between public and private spheres is one with political, economic, and social implications. Moreover, the relative significance of each of these spheres has changed over time, particularly with the emergence of the liberal tradition and the market. Despite these differences, there is a clear core of privacy that shields certain issues and actors from public view. This overlap means that each of these traditions points to the existence of a private sphere in which the concept of privacy minimizes public scrutiny. When applied to the international system, the public/private divide mirrors the division between state and nonstate actors. Just as in the other theoretical formulations of the public/private divide, events within the private sphere of the international system are obscured relative to those in the private sphere. This international public/private divide generates many of the problems discussed in previous chapters by shielding the activities of PMCs from public scrutiny. To the extent that these PMCs are involved in an activity that has been defined as a public enterprise, their position on the private side of the public/private divide poses real difficulties. The chapter concludes by considering strategies for bridging the public/private divide for the purposes of applying just war norms to privatized war.
Amy E. Eckert
- Published in print:
- 2015
- Published Online:
- August 2016
- ISBN:
- 9780801454202
- eISBN:
- 9781501703577
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9780801454202.003.0002
- Subject:
- Political Science, Security Studies
This chapter discusses the just war tradition's development and the context of the evolution of the state system and the changing role of private force. To best track the effect of the state system's ...
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This chapter discusses the just war tradition's development and the context of the evolution of the state system and the changing role of private force. To best track the effect of the state system's emergence on the just war tradition, the account picks up in the period immediately before the state began to displace other forms of political organization. It begins with a consideration of the state of the just war tradition in the Middle Ages, immediately prior to the emergence of the Westphalian state system. In this prestate era, the problem of multiple competing and overlapping entities with authority over war meant that the tradition became centered on difficult jus ad bellum questions, particularly the issues of right authority and just cause. It then turns to the transformations that occurred within the political system and the just war tradition after the state's consolidation of its authority and its eventual acquisition of a monopoly over force. It concludes with a look at the current transformations within the state system that undermine the assumptions coming out of the Westphalian state system.Less
This chapter discusses the just war tradition's development and the context of the evolution of the state system and the changing role of private force. To best track the effect of the state system's emergence on the just war tradition, the account picks up in the period immediately before the state began to displace other forms of political organization. It begins with a consideration of the state of the just war tradition in the Middle Ages, immediately prior to the emergence of the Westphalian state system. In this prestate era, the problem of multiple competing and overlapping entities with authority over war meant that the tradition became centered on difficult jus ad bellum questions, particularly the issues of right authority and just cause. It then turns to the transformations that occurred within the political system and the just war tradition after the state's consolidation of its authority and its eventual acquisition of a monopoly over force. It concludes with a look at the current transformations within the state system that undermine the assumptions coming out of the Westphalian state system.
